Followers

Thursday, August 28, 2014

A Constitution For All

A version of this article was previously published in the Star.This week marks the fourth anniversary of the promulgation of the
Kenyan constitution. The significance of
a country’s constitutional history cannot be overstated, for it is as a
reminder of where the nation has come from and the lessons it has learnt. On
this anniversary, Kenyans could do worse than take some time to reflect on the process
of constitution-making and on the document that process has produced.

Much of the last quarter century of our collective history was
spent trying to undo the original sin committed at independence. In that time,
we have been trying to reverse the dismantling of the majimbo constitution, concentration
of power in the person of the president as well as the dilution of the bill of
rights. The terms we use may be different but the arguments are still largely
the same ones our parents and grandparents had. The concerns over
marginalisation and exclusion remain.

In a paper titled Amending the Constitution -Learning from
History that he presented at
an International Commission of Jurists conference in 1992, our current
Attorney-General , Dr Githu Muigai, noted what had happened in the first decade
following independence: "The colonial order had been one monolithic
edifice of power that did not rely on any set of rules for legitimization. When
the Independence constitution was put into place it was completely at variance
with the authoritarian administrative structures that were still kept in place
by the entire corpus of public law. Part of the initial amendments therefore
involved an attempt - albeit misguided - to harmonise the operations of a
democratic constitution with an undemocratic and authoritarian administrative
structure. Unhappily instead of the latter being amended to fit the former, the
former was altered to fit the latter with the result that the constitution was
effectively downgraded."

Effectively, as the Truth Justice and Reconciliation Commission
noted in its report, the colonial state endured. Thus Jaramogi Oginga Odinga
could declare “Not Yet Uhuru” and inspire the two-decade long struggle for the
“Second Liberation” that started in 1990 and gave birth to the current
constitution. And while it was very much a struggle to tame the “authoritarian
administrative structure,” it also became conflated with notions of good
governance, accountability and transparency, which made Kenya part of a global
trend following the fall of the Berlin wall.

But lately, these realities seem to have taken a back seat to the
struggle among politicians for governance arrangements that would suit them.
There appears to be a dangerous sentiment that the underlying causes were
either resolved by the promulgation of the constitution or that they can be
safely swept under the carpet of “accept and move on.” In an article published over the weekend Dr Nzamba Kitonga, the former Chairman of the Committee of Experts that drafted the 2010
constitution, essentially admits that the process was hijacked by the
political elite and details how, following the mind games played at Naivasha,
the committee was “advised not to tamper with the
pure presidential system agreement and several other new clauses.”

So much for a “people driven constitution”. But Dr
Kitonga goes ahead to legitimate this usurpation, privileging the arrangements
for electoral losers and reducing the role of “Wanjiku” in government to
cheering on the sidelines. “In the rural areas
wananchi are also grumbling,” he asserts.
“They say they no longer “feel” the government. They long for the days when an
MP/minister would visit the grassroots to be “with them” and explain government
policies at their level and in their grassroots language — including dancing,
singing, cheering and generally inspiring the crowd.”

And so it is today that our current constitutional
debates seem to be more about accommodating politicians and their greed and
relegating the role of the people to performing traditional gigs for the elites
entertainment. Governance has taken a back seat.

The fact is, as the above example
demonstrates, despite the change in constitutions the rapacious colonial state
endures. Sadly, we have divorced our governance arrangements from the role they
are meant to play in preventing such irregularities. Once again the
constitution is in danger of being downgraded to fit our corrupt circumstance
instead of being the mould into which our governance fits. So today, we would much rather go to the
streets to protest theft of political power (which is really only the
opportunity to “eat”) than to protest the impoverishment and marginalisation
that this has brought. I fear we are slipping back into the mould where we
would much rather starve with one of our own in power, than set up systems that
ensure all have square meals. We are still content with the symbols of democracy and “development” while forsaking the substance. All this
reveals, as one of my friends put it, “how hollow the transformation wrought by
the new constitution.”

It has been said time and again that constitutions live, not on
paper, but in the hearts of the people. If they are to be any good, they have
got to work in the interests of the many, not of the few. Our political elites
have for too long enjoyed too many seats at the constitutional table and their
voices and ambitions have for too long been allowed to crowd out the call from
the masses for accountable governance that responds to their needs, that
defends them from the indignities of deprivation and poverty, protects them
from wanton violence, treats them as human beings everywhere deserve to be
treated, ensures they have the opportunity to actualize their dreams and that
offers a better future for their children.

As we mark the fourth anniversary of the promulgation of our
constitution, and as we debate the possibilities and opportunities of amending
it, it is my desperate –some might say desperately unrealistic– hope that it is
the welfare of wananchi, not that of the current crop of wenyenchi,
that will be the uppermost consideration animating our conversations.